July 13, 2012
Wells Fargo Settles Mortgage Discrimination Case
Wells Fargo, the nations largest mortgage lender, has agreed to pay $175 million to settle accusations that it pushed black and latino borrowers into high costs loans and then charged them excessive fees. From the Washington Post:
[The Justice Department's] centered on Wells Fargo mortgages made between 2004 and 2009 by independent brokers. It found that highly qualified black borrowers were four times as likely to receive a subprime loan as similarly qualified white applicants. Hispanic borrowers were three times as likely to get a subprime loan. Those mortgages carried higher interest rates and unfavorable terms that often resulted in borrowers falling behind on payments or losing their homes altogether.
Salkin et al. on 'Green' Requirements and 'Leedigation'
Patricia Salkin (Albany), Graham Grady, Nicole Mueller, and Susan Herendeen have posted Government 'Green' Requirements and 'Leedigation' (Real Estate Law Journal) on SSRN. Here's the abstract:
In the last decade, many state and local governments have responded to the threat of global warming and climate change by offering incentives to spur green construction and incorporating principles of efficiency and conservation into their building codes. To accomplish this, some local governments have tied their standards to those set by the independent, non-profit U.S. Green Building Council, known as LEED standards. This article examines how local parties have been sued for alleged failure to deliver on the promised "Green."
July 12, 2012
Boston Archdiocese's Use of Restrictive Covenants
Over at the Faculty Lounge, Al Brophy has a great round-up of the Boston Archdiocese's aggressive use of restrictive covenants when it sells property:
One property in Holyoke has restrictions against an abortion clinic, exotic dance club, or satanic materials. One property in Lowell has restrictions against "prurient activity," including nude, semi-nude or sexually suggestive activity or entertainment, production, publication, display, or promotion of pornography. A property in Cambridge has restrictions for housing use only and a property is Lawrence is restricted against use by a charter school.
[...] There are a ton of interesting things to talk about here. I suspect some of these restrictions are enforceable -- like the ones against the exotic dance club. [...] What interests me in particular are the restrictions on abortion. Couple of things to think about here. The Restatement Third of Servitudes § 3.1 -- if applied in Massachusetts -- would be a problem for the enforcement. Recall that § 3.1 construes a servitude that unreasonably burdens a fundamental constitutional right as a violation of public policy.
Power on Stop the Beach
Garrett Power (Maryland) has posted Property Rights, the 'Gang of Four' & the Fifth Vote: Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection (U.S. Supreme Court 2010) (Widener Law Review) on SSRN. Here's the abstract:
In 2010 The U.S. Supreme Court decided the case of Stop the Beach Renourishment v. Florida Department of Environmental Protection (SBR v. Fla. EPA). Justice Antonin Scalia announced the judgment of the Court. All Justices agreed that Florida had not violated the Takings Clause of the Federal Constitution’s Fifth Amendment. But then in a plurality opinion Justice Scalia joined by the Chief Justice Roberts and Justices Thomas and Alito proposed profound changes in the law of “regulatory takings.” As the spokesman for the Court’s property rights absolutists Scalia advanced two novel legal propositions. First he argued that federal courts had the power to collaterally attack and reverse state court decisions which evaded the requirements of the Taking Clause with pretextual background principles of the State's law of property. Second he opined that each of the “essential sticks in the bundle of rights that are commonly characterized as property” was a separate distinct property right, and that any deprivation of an “established property right” was a compensable Taking under the Fifth and Fourteenth Amendments. If the “Gang of Four” can find a fifth vote, the law of regulatory takings will be radically revised.
July 11, 2012
The Mormon Church v. NIMBYs
Buzzfeed has picked up this story about the Mormon Church getting involved in a very fine grain land-use battle in Provo:
At issue is a classic not-in-my-backyard fight: Some Provo, Utah residents are worried that a nine-story building the Mormon Church wants to construct on the campus of its Missionary Training Center will block their view of the snow-capped Wasatch Mountains. [...]
For four months, the incident played out like any other NIMBY zoning conflict — until the church brought God into it. Paul Evans, a Provo resident who was spearheading the efforts against the building ... told BuzzFeed that his Stake President, a local ecclesiastical leader, told him that Mormon apostle Russell M. Nelson — one of the highest-ranking officials in the church — was now "inviting" him and other activists to abandon their effort as a matter of faith.
Salkin on the Increasing Federal Influence in Local Land Use Planning
Patricia Salkin (Albany) has posted The Quiet Revolution and Federalism: Into the Future (John Marshall Law Review) on SSRN. Here's the abstract:
This Article offers an examination of the federal role in land use planning and regulation set in the context of varying theories of federalism by presenting a historical and modern overview of the increasing federal influence in local land use planning and regulation, specifically highlighting how federal statutes and programs impact local municipal decision making in the area of land use planning. Part II provides a brief introduction into theories of federalism and their application to local land use regulation in the United States. Part III provides a brief overview of federal legislation in the United States which affected local land use across three time periods: first, that which existed before the publication of THE QUIET REVOLUTION; second, legislation that emerged a quarter century after the publication of THE QUIET REVOLUTION; and third, more recent federal programmatic and legislative approaches. Part IV provides analysis of the future of federalism in land use regulation, noting the increasing trend of the federal programmatic influence and the potential future influence on local land use controls. The Article concludes with a warning to local governments to be vigilant and to rethink the paradigm of land use regulation to regain control in certain areas to prevent further encroachment by the federal government into matters of local concern.
July 10, 2012
Poverty in the Suburbs
A New York Times editorial raises questions about the striking growth of poverty in the country's suburbs.
While the overall suburban population grew slightly during the previous decade, the number of people living below the poverty line in the suburbs grew by 66 percent, compared with 47 percent in cities.
The suburbs were not designed for the poor. And even now, local governments are not equipped to see, much less answer, a lot of their needs. [...] Of course, there are things to be done — smarter use of social-service resources, more economic development, a stronger public commitment to mass transit, housing and job training. But those are long-term challenges atop an immediate crisis, which must be addressed by more spending and more staffing to fix the safety net. Solving these problems must begin with an admission that suburban officials and residents have been reluctant to make: Poverty is growing, and it is not going away.
Map of the Day: Hispanics in the USA
Slate creates another gem - an interactive map of the nation's Hispanic population, by county:
Owley and Tulowiecki on the Role of Land Trusts in Forest Conservation
Jessica Owley (Buffalo) and Stephen Tulowiecki (Buffalo) have posted Who Should Protect the Forest?: Conservation Easements in the Forest Legacy Program (Public Land and Resources Law Review) on SSRN. Here's the abstract:
Increasingly, governments are turning to nongovernemental actors to carry out environmental protection goals. This has been particularly prevalent in the realm of land conservation. Government programs often draw upon the power of nonprofit conservation organizations known as land trusts to monitor, manage, and enforce land protection goals. Reliance on land trusts has created both philosophical and practical conundrums. These concerns also stem in part from the chief land protection tool used by land trusts: conservation easements. This article examines these concerns by a close look at the role of land trusts and conservation easements in the Forest Legacy Program.
Administered by the U.S. Forest Service, the Forest Legacy Program seeks to slow conversion of private forestlands to nonforest uses. Conservation easements form a key element of the Program, but their use is complicated. In creating the Program, Congress seemed to both want to encourage the involvement of land trusts and to curb their reach. The Program draws upon the power of private organizations, and increasingly calls upon land trusts to carry out the duty of protecting forestlands and yet stops short of enabling these organizations to receive Program funds or to enforce conservation easements purchased with Program funds. Thus, in the FLP, Congress inches toward privatization of forestland conservation, but holds back. This stance is bewildering. If Congress was concerned with the involvement of land trusts in forestland conservation, it seems to give them too much power. If Congress wanted to encourage greater land trust involvement, it seems to stop too short.
July 9, 2012
Wanted: Wanted Ads
Hiring chairs: July 25 is the deadline for schools to get their hiring advertisements in the first issue of the 2012-2013 AALS Placement Bulletin.
If your school is looking for property hires (or land use or real estate), we're more than happy to run your add here, as well. Just drop me an email with all the details you'd like included.
Remaking Big Box Stores
As big box retail continues to shed jobs and close locations, one major land use challenge facing cities is what to do with those huge stores. Last week, Slate detailed how one abandoned Walmart in was successfully repurposed into a public library:
Minneapolis-based architects Meyer, Scherer & Rockcastle, Ltd. breathed fresh life into the warehouse, about as big as two and a half football fields, late last year, when they repurposed it as the country’s largest single-story public library. ... The plan was to establish a community gathering place, and it worked. Interim director Kate Horan says that the numbers of new registrations and book loans at the library are “through the roof.” “We used to be really busy on Sunday afternoons,” she added. “Now, every day is a Sunday afternoon.” [...]
[I]t’s not just Walmart stores that towns are taking back. Abandoned big-box stores are being repurposed across the country. Oberlin professor Julia Christensen documented ten such conversions in her 2008 book, Big Box Reuse, and a Wiki she set up shows as many as 27. Her website tells the story a North Carolina K-Mart turned charter school, a Florida Winn-Dixie grocery store turned chapel, and a Kentucky Walmart turned court house, among others.
Lehavi on Property Theory and the Business Corporation
Amnon Lehavi (Radzyner School of Law - Israel) has posted Onerous Property: Why the Business Corporation is Missing from Property Theory on SSRN. Here's the abstract:
Property theory is thriving. Having been long dominated by a disintegrative approach building up on the bundle of rights concept, scholars are now reexamining essentialist models of property, with the right to exclude featuring prominently as property’s prospective core. These theories study various resources, from land to intellectual property, to pinpoint such an essence.
Oddly enough, largely missing from these accounts is the most prominent source of wealth in today’s world: the business corporation. While corporate law theory is increasingly looking beyond the nexus of contracts theory to illuminate the firm’s proprietary foundations, property theory has yet to fit the business corporation into its newly integrative framework.
The paper argues that this deficiency is not merely a coincidence. In many ways, the business corporation undermines the paradigms of current property theory. To start with, Berle and Means’s underlying notion of divorce of ownership from control in the business corporation seems antagonistic to the owner’s right to exclude or to ‘set the agenda’ for the resource. In addition, while property theory recognizes the need to pool together resources and overcome collective action problems, conventional models of property governance such as residential community associations seem alienated from the power relations and vertical authority within the business firm. Specifically, the setting of a majority shareholder enjoying a control premium alongside owing fiduciary duties to dispersed minority shareholders is allegedly at odds with the horizontal governance assumption in property theory. It may be even unfavorably viewed as reminiscent of obsolete modes of status-based stratification in property, going back to feudalism.
This inconvenience does not release, however, property theory from accounting for the core nature of the business corporation. Moreover, the paper argues that once we move from a model of substantive essentialism to one that identifies the institutional and structural traits of property, then the business corporation becomes a much better fit for current property jurisprudence.